With more than 60 years of experience on both sides of the Atlantic, Cleary Gottlieb’s antitrust/competition practice provides clients with unparalleled global competition strategy to match their business and legal needs. Clients benefit from our in-depth experience and longstanding commitment in the jurisdictions in which we practice. One of the few global firms with an equally strong and recognized competition practice in Europe and in the United States, Cleary Gottlieb offers clients a unique transatlantic perspective that is invaluable in today’s increasingly borderless business landscape.
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Apr 12, 2013
Cleary Gottlieb is representing Google/Motorola in connection with the sale by Google/Motorola of the Motorola Home business to Arris Group, including the recent announcement that the U.S. Department of Justice has cleared the transaction. Cleary Gottlieb has previously represented Google in the successful antitrust clearance of the acquisitions, among others, of YouTube, DoubleClick, AdMob, Admeld, and Motorola Mobility.
Dec 06, 2011
Cleary Gottlieb represented Google in its acquisition of Admeld, a New York-based company that helps publishers maximize revenues from online advertising. The transaction was cleared without condition by the U.S. Department of Justice Antitrust Division on December 2 and closed on December 6. Cleary Gottlieb advised on both the M&A and antitrust aspects of the deal.
Nov 20, 2012
Cleary Gottlieb represented Dollar Thrifty Automotive Group in its acquisition by Hertz Global Holdings. The transaction received antitrust clearance by the U.S. Federal Trade Commission (FTC) on November 15 and the deal closed on November 20. This transaction involved multiple competing bids by Hertz and Avis over 30 months and was closely scrutinized by the FTC.
The combination of Hertz and Dollar Thrifty will create a global, multi-brand rental car leader offering customers a full range of rental options through its strong premium and value brands. Cleary Gottlieb advised Dollar Thrifty on all aspects of the transaction including the M&A, antitrust, employee benefits, litigation, tax, securities, structured finance, intellectual property, and general corporate aspects of the deal.
Sep 24, 2011
Cleary Gottlieb is advising UTC on the EU antitrust aspects of its proposed $18.4 billion acquisition of Goodrich, an aircraft components manufacturer. UTC will pay $127.50 a share in cash, in what will be one of the largest acquisitions in the company’s history.
Apr 23, 2013
Cleary Gottlieb successfully defended Sky Italia, the Italian subsidiary of the Newscorp group, in the investigation opened by the Italian Competition Authority with respect to the acquisition of broadcasting rights over FIFA World Cup and UEFA Champions League.
According to the decision opening the investigation, the acquisition by Sky of exclusive broadcasting rights over the 2010 and 2014 seasons of the FIFA World Cup amounted to an abuse of its dominant position in the pay-tv market. The ICA subsequently extended the scope of the investigation to the acquisition of broadcasting rights over the 2012/2013, 2013/2014 and 2014/2015 seasons of the UEFA Champions League.
On April 23, 2013, the ICA closed the investigation against Sky, acknowledging the absence of any abusive conduct. In line with an ICC award dismissing RTI’s claims against Sky, the ICA deemed that the FIFA World Cup broadcasting rights were not considered essential to compete in the pay-TV sector. Second, the ICA agreed that the UEFA Champions League broadcasting rights were acquired following an open competitive tender procedure, based on a platform-neutral approach. Moreover, during the investigation, Sky and RTI cross-licensed their broadcasting rights on various events, including over two seasons of the UEFA Europa League and Champions League (2012/2013 and 2013/2014), allowing for such events to be aired over all broadcasting platforms (satellite and DTT) and on free-to-air television.
Mar 05, 2013
Cleary Gottlieb successfully represented pro bono the Belgian Institute for Company Lawyers - Instituut voor Bedrijfsjuristen/Institut des Juristes d'Entreprise (IBJ/IJE) - as an intervener in court proceedings brought by Belgacom SA/NV against the Belgian Competition Authority (BCA), which resulted in the Brussels Court of Appeal granting a protection equivalent to legal privilege to in-house lawyers' legal advice in national antitrust proceedings.
In October 2010, the BCA inspected the premises of Belgacom and seized hundreds of electronic files including legal advice rendered by Belgacom's in-house lawyers who were members of the IBJ/IJE. Following the decision to deny privilege to its in-house lawyers' legal advice and related correspondence, Belgacom sued the BCA before the Brussels Court of Appeal in March 2011. The IBJ/IJE subsequently intervened in support of Belgacom's argument to the effect that legal advice rendered by its in-house lawyers and related correspondence were confidential according to Belgian statutory law and could not therefore be seized in the course of inspections carried out by the BCA, let alone versed into the case file.
In a judgment on March 5, 2013, the Brussels Court of Appeal recognized that, under Belgian law, legal advice rendered by in-house lawyers and related correspondence are confidential and cannot be seized by the BCA. The Court emphasized that the opposite solution would contravene the essence of the task of general interest carried out by company lawyers to the benefit of their employer.
This judgment has important implications at Belgian level but also, potentially, at European level, in so far as: (i) it expressly rejects the applicability (and contagion) of the "Akzo" ruling of the EU Court of Justice (C-97/08P) in (to) national antitrust proceedings; and (ii) it roots the confidentiality of in-house counsel's legal advice in the right to privacy protected by Article 8 of the European Convention of Human Rights and Article 7 of the EU Charter of Fundamental Rights.
Apr 19, 2012
Cleary Gottlieb represented Sony Corporation of America in the EU and international antitrust aspects of the $2.2 billion acquisition of EMI Music Publishing by a consortium of investors led by Sony Corporation of America and Mubadala Development Company PJSC. The EMI Music Publishing catalogue will be managed by Sony/ATV Music Publishing (a joint venture between Sony Corporation of America and the Estate of Michael Jackson), creating the world's largest music publisher.
The acquisition was cleared by the European Commission in the first phase, avoiding the in-depth phase II investigation expected by many industry observers. The Commission had initially expressed reservations about the licensing of the group's Anglo-American repertoire to online music platforms in the United Kingdom and Ireland, but the Sony-led consortium was able to allay these concerns by proposing to sell off the Virgin and Famous UK music catalogues, together with the contracts of several songwriters.
Jul 19, 2012
Cleary Gottlieb represented Royal DSM on the antitrust aspects of its CAD 540 million all-cash acquisition of Ocean Nutrition Canada, a supplier of Omega-3 EPA/DHA ingredients to the dietary supplement and food & beverage manufacturing markets. The transaction was announced on May 18 and closed on July 19, 2012.
Royal DSM is a global science-based company active in health, nutrition, and materials. This acquisition will strengthen and complement DSM’s global Nutritional Lipids growth platform.
Feb 09, 2011
Cleary Gottlieb is representing NYSE Euronext on the EU antitrust aspects of its announced merger with Deutsche Börse. The deal was announced in February and would create the world's largest exchange operator. The combined company will have dual headquarters in New York and Frankfurt and list its shares for trading in New York, Frankfurt, and Paris.
NYSE Euronext and Deutsche Börse are both leading providers of capital market infrastructure and operate a number of equity and derivatives exchanges. They are also active in the provision of certain post-trade services, the distribution of market data, the licensing of indices, and the provision of various IT-related products and services.
Oct 03, 2012
Cleary Gottlieb is advising Deutsche Telekom on the antitrust and tax aspects of T-Mobile USA's acquisition of MetroPCS. The combined company, which will retain T-Mobile's name, will create the leading value carrier in the U.S. wireless marketplace. MetroPCS shareholders will receive $1.5 billion in cash and 26% ownership in the combined company. The transaction was announced on October 3 and is expected to close in the first half of 2013.
T-Mobile USA is the U.S. wireless operation of Deutsche Telekom AG. MetroPCS Communications is a provider of no annual contract, unlimited wireless communications service for a flat rate.
Jun 16, 2011
Cleary Gottlieb won a significant appellate decision on an important issue of EU competition law for the Italian energy company Edison.
On June 16, 2011, the EU General Court annulled a 2006 decision of the Commission in the part where it handed down a €58 million fine on Edison in connection with the hydrogen peroxide cartel. The Commission had fined Edison based on the circumstance that, during the infringement period, it held the entire share capital of Ausimont which had taken part in the cartel. In case of a wholly-owned subsidiary involved in an antitrust infringement, the EU courts' case-law allows the Commission to rely on a presumption that the subsidiary does not act autonomously on the market, but is subject to the decisive influence of its parent, which can thus be held jointly liable for the infringement. The parent company can rebut the presumption by adducing proof to the contrary.
Upholding the arguments set forth by Cleary Gottlieb's lawyers on behalf of Edison, the General Court established that the Commission did not adequately reason its conclusion as to Edison's liability for the infringement committed by Ausimont. In particular, the General Court found that, by not properly explaining its reasons for rejecting the evidence adduced by Edison to demonstrate that, notwithstanding its 100% participation to Ausimont's share capital, it did not actually exercise a decisive influence on the commercial behavior of the latter, the Commission had effectively failed to examine and take a position on such evidence, thereby incurring a lack of reasoning vitiating the decision. The General Court also found that, contrary to the Commission's contention, the pieces of evidence brought by Edison were clearly relevant and significant to the demonstration of Ausimont's decisional autonomy.
The Edison judgment represents one of the very few instances of annulment of a Commission antitrust decision on the issue of parental liability. Indeed, a string of recent cases seemed to have made it virtually impossible for a parent company holding a 100% participation in a subsidiary involved in a cartel to rebut the presumption that it exercised decisive influence over its wholly-owned subsidiary and should thus be held liable for the infringement committed by the latter. The significance of the Edison judgment lies in the fact that the General Court has clearly affirmed that, when it makes use of the presumption, the Commission has a duty to scrupulously review the evidence adduced by the parent company in order to rebut the presumption and, if it believes that the evidence is not capable of doing so, to explain in detail, in its decision, why it deems so. Indeed, if it fails to do so, the Commission effectively transforms the presumption from rebuttable into conclusive, and this is contrary to the EU court's case-law.
Jul 27, 2011
Cleary Gottlieb represented Nortel Networks on the Section 363 bankruptcy sale of its residual patent assets through a bankruptcy auction to a consortium consisting of Apple, EMC, Ericsson, Microsoft, Research In Motion and Sony for $4.5 billion, an increase of $3.6 billion from Ranger Inc.’s original stalking horse bid for these assets. The sale resulted from a four day auction that took place in Cleary Gottlieb’s New York office from June 27 through June 30. A joint hearing before courts in the United States and Canada was held on July 11 to formally approve the sale. Nortel has been a client of Cleary Gottlieb for more than 20 years. The firm is currently acting as U.S. bankruptcy counsel to Nortel and affiliates in their U.S. Chapter 11 proceedings, which are closely coordinated with proceedings in Canada, the United Kingdom and France. Cleary Gottlieb has represented Nortel on its prior Section 363 bankruptcy auction sales, including the:
- sale of its wireless infrastructure assets to Ericsson for $1.13 billion (November 2009);
- sale of its global Enterprise Solutions business to Avaya for a total of $915 million (December 2009);
- sale of its Optical Networking and Carrier Ethernet businesses to Ciena for $774 million (March 2010);
- sale of its GSM/GSM-R business in Europe and Taiwan to Ericsson and Kapsch CarrierCom for $103 million (March 2010);
- sale of its Carrier VoIP and Application Solutions to GENBAND for $282 million (May 2010); and
- sale of its Multiservice Switch business to Ericsson for $65 million (September 2010).
Jan 29, 2011
Cleary Gottlieb is currently representing Alpha Natural Resources, Inc. in its $8.5 billion acquisition of Massey Energy Company. Under the terms of the agreement, Massey stockholders will receive, at the closing, 1.025 shares of Alpha common stock and $10.00 in cash for each share of Massey common stock. The transaction, which was announced on January 29, is expected to close later this year pending receipt of stockholder approvals of both companies and regulatory clearances.
The combined company will bring together Alpha's and Massey's highly complementary assets, which include more than 110 mines and combined coal reserves of approximately 5 billion tons, including one of the world's largest and highest-quality metallurgical coal reserve bases.
Alpha Natural Resources is one of America's premier coal suppliers with coal production capacity of greater than 90 million tons a year. Among U.S. producers, Alpha is the leading supplier and exporter of metallurgical coal used in the steel-making process and is a major supplier of thermal coal to electric utilities and manufacturing industries across the country.
Nov 09, 2010
Cleary Gottlieb represented Grupo Bimbo and its U.S. subsidiary, BBU, Inc., in the acquisition of Sara Lee Corporation’s North American Fresh Bakery business for an enterprise value of $959 million. The acquisition includes a royalty-free perpetual license to the Sara Lee® brand in fresh bakery products in the Americas, Asia, Africa and Eastern and Central European countries, as well as a portfolio of regional brands. The transaction, which is subject to regulatory approvals, was announced on November 9 and is expected to close in 2011.
Sara Lee NAFB operates 41 plants and close to 4,800 distribution routes, and employs approximately 13,000 associates in the United States. Grupo Bimbo's combined U.S. businesses will employ more than 28,000 associates, operate 75 plants and distribute its products through more than 13,000 routes, with estimated pro forma sales of $5.8 billion in 2010.
In January 2009, Cleary Gottlieb represented Grupo Bimbo in the $2.5 billion acquisition of Bimbo Foods, Inc. (formerly Weston Foods, Inc.) and the related financing.
Nov 23, 2011
Cleary Gottlieb represented U.S. technology company Western Digital as lead antitrust counsel in Europe on its $4.8 billion acquisition of Hitachi’s hard disk drive (HDD) business, known as Viviti Technologies. The deal was closely monitored by the European Commission who raised regulatory concerns about the 3.5" HDD business, due to a parallel transaction in the HDD sector between Seagate and Samsung. To alleviate the Commission's concerns, Western Digital will divest certain assets. The deal is still awaiting antitrust approval in the United States and other jurisdictions.
Mar 02, 2010
Cleary Gottlieb teams are playing two roles in the acquisition by The Coca-Cola Company of the North American bottling operations of Coca-Cola Enterprise. One Cleary Gottlieb team is representing The Coca-Cola Company on U.S. and European antitrust matters, while a separate Cleary Gottlieb team is representing Goldman, Sachs & Co., as financial advisor to The Coca-Cola Company. In connection with the transaction, CCE’s European bottling operations will be separated into a new corporation that will be held by the existing holders of CCE stock other than The Coca-Cola Company. In exchange for the North American bottling operations of CCE, The Coca-Cola Company will, among other things, surrender its ownership of CCE stock, valued at approximately $3.4 billion, and assume approximately $8.8 billion of CCE debt. The Coca-Cola Company has also agreed in principle to sell to CCE its bottling operations in Norway and Sweden for approximately $800 million.
The Coca-Cola Company is the world’s leading owner and marketer of nonalcoholic beverage brands and the world’s largest manufacturer, distributor and marketer of concentrates and syrups used to produce nonalcoholic beverages. CCE is the world’s largest manufacturer, seller and distributor of nonalcoholic beverages.
CCE is the leading distributor of Coca-Cola beverages and distributes products in 46 states, 10 Canadian provinces, the Caribbean, and six European nations.
Dec 23, 2010
Cleary Gottlieb represented News Corporation in obtaining unconditional clearance from the European Commission for its proposed bid for any and all of the shares of BSkyB that it does not already own. BSkyB is a leading Pay TV operator in the United Kingdom and Ireland. News Corporation already owns a 39% non-controlling stake in BSkyB and following the transaction would be in a position to acquire sole control over BSkyB.
Feb 24, 2012
Cleary Gottlieb assisted A2A and Delmi in signing final contracts relating to the reorganization of equity investments in Edison and Edipower. Under the terms of these agreements, Delmi will purchase a 70% stake in Edipower from Edison (50%) and Alpiq (20%) for a total price of €804 million. EDF will purchase a 50% stake in Transalpina di Energia from Delmi for a price of €704 million. EDF already owns the remaining 50% in Transalpina di Energia (the vehicle controlling Edison), which, in turn, holds 61.3% of Edison’s voting share capital.
The transaction is subject to approval by the Italian and EU antitrust authorities and to a confirmation by Consob that the price of the mandatory tender offer following the acquisition of control of Edison by EDF is not higher than €0.84 per share.
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